United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, Jr., District Judge.
This matter is before the Court on defendants' motions for summary judgment. The motions have been fully briefed and are ripe for disposition. For the following reasons, the Court will grant defendants' motions for summary judgment.
Plaintiffs Lloyd and Melissa Newsom filed their Complaint against Big M Transportation, Inc., Diesel Express, Inc., Snico Cartage, Inc., and Orenthus Benson. In their Complaint, plaintiffs allege "defendant  Benson acted as the agent, servant and employee of defendants Big M Transportation, Inc. and Diesel Express, Inc. and Snico Cartage, Inc., and each of them, within the scope and course of that agency and employment." Plaintiffs' claims arise out of a motor vehicle incident.
Plaintiffs allege that on August 13, 2011, plaintiff Lloyd Newsom ("Newsom") was operating a motorcycle southbound on Interstate 55, in the far left (passing) lane. As Newsom was passing a tractor-trailer, the tractor-trailer moved into the passing lane, forcing Newsom off the road and into the median. The motorcycle being operated by Newsom began to slide, struck the ground, and overturned, causing Newsom to be ejected from the seat of the motorcycle and to suffer serious and permanent injuries. Plaintiff Melissa Newsom, as the spouse of Lloyd Newsom, asserts a claim for loss of consortium. Plaintiffs allege that their injuries were caused by the negligence of defendant Benson, acting as the agent, servant and employee of defendants Big M Transportation, Inc., Diesel Express, Inc., and Snico Cartage, Inc., in that Benson failed to keep a careful lookout and changed lanes when it was not safe to do so.
Plaintiffs later dismissed, without prejudice, their claims against defendant Snico Cartage, Inc. The remaining defendants have filed motions for summary judgment. Defendants allege that plaintiffs cannot establish that the driver of the tractor-trailer which caused the accident was Benson, a driver operating a Big M Transportation, Inc. vehicle, or a driver operating a Diesel Express vehicle. Therefore, defendants argue they are entitled to summary judgment on plaintiff Lloyd Newsom's personal injury claim and plaintiff Melissa Newsom's derivative loss of consortium claim.
II. Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op. Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party bears the burden of setting forth affirmative evidence and specific facts by affidavit and other evidence showing that there is a genuine dispute of a material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at 324. "A dispute about a material fact is genuine' only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Herring v. Canada Life Assur. Co., 207 F.3d 1026, 1030 (8th Cir. 2000) (quoting Anderson, 477 U.S. at 248). "[T]he mere existence of some alleged factual dispute between the parties will not defeat a motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48. A party resisting summary judgment has the burden to designate the specific facts that create a triable controversy. See Crossley v. Georgia-Pacific Corp., 355 F.3d 1112, 1114 (8th Cir. 2004).
In ruling on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Matsushita, 475 U.S. at 587; Woods v. DaimlerChrysler Corp., 409 F.3d 984, 990 (8th Cir. 2005). The Court may not "weigh the evidence in the summary judgment record, decide credibility questions, or determine the truth of any factual issue." Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). However, the court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).
The movant's statement of facts are deemed admitted if not specifically controverted by the party opposing the motion. Local Rule 4.01 (E) provides:
A memorandum in support of a motion for summary judgment shall have attached a statement of uncontroverted material facts, set forth in a separately numbered paragraph for each fact, indicating whether each fact is established by the record, and if so, the appropriate citations. Every memorandum in opposition shall include a statement of material facts as to which the party contends a genuine issue exists. Those matters in dispute shall be set forth with specific references to portions of the record, where available, upon which the opposing party relies. The opposing party also shall note for all disputed facts the paragraph number from movant's listing of facts. All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party.
(emphasis added). Even where all of movant's statements of fact are deemed admitted, the Court must look at the entire record to determine whether summary judgment is warranted. "Courts should proceed to examine those portions of the record properly before them and decide for themselves whether the motion is well taken." Lowry v. Powerscreen USB, Inc., 72 F.Supp.2d 1061, 1064 (E.D. Mo. 1999) (citing Canada v. Union Electric Co., 135 F.3d 1211, 1213 (8th Cir. 1997).
At the outset, the Court notes that plaintiffs' complaint alleges that Orenthus Benson, "as the agent, servant and employee of defendants Big M Transportation, Inc. and Diesel Express, Inc. and Snico Cartage, Inc., and each of them, within the scope and course of that agency and employment" caused the accident. Based on the separate motions for summary judgment filed by (1) Benson and Big M Transportation, Inc. and (2) Diesel Express, Inc., and the plaintiffs' responses thereto, it now appears that plaintiffs are no longer making a claim that Benson is an agent, servant, and employee of Big M Transportation, Inc. and Diesel Express, Inc. Instead, there are two drivers from two separate companies, Orenthus Benson for Big M Transportation and Dwayne Bullard for Diesel Express, that plaintiffs point to as potentially responsible for the accident. The Court believes that summary ...